Case 1:08-cr RMU Document 147 Filed 10/16/2009 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:08-cr RMU Document 147 Filed 10/16/2009 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES OF AMERICA ) ) v. ) No. 1:08-cr-360-RMU ) PAUL ALVIN SLOUGH, ) NICHOLAS ABRAM SLATTEN, ) EVAN SHAWN LIBERTY, ) DUSTIN LAURENT HEARD, and ) DONALD WAYNE BALL, ) ) Defendants. ) ) DEFENDANTS MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY REGARDING THE MILITARY EXTRATERRITORIAL JURISDICTION ACT Pursuant to Federal Rule of Criminal Procedure 12(b)(2), Defendants, through counsel, move to dismiss the indictment for irregularity in the grand jury proceeding, to wit, the prosecutors mis-instruction of the grand jury regarding the applicability of the Military Extraterritorial Jurisdiction Act. In connection with this motion, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), Defendants respectfully request that the Court order disclosure of the grand jury transcripts relating to the prosecution s instructions and argument regarding the applicability of the Military Extraterritorial Jurisdiction Act. In the alternative, Defendants respectfully urge the Court to review closely those portions of the grand jury transcripts (which the government has already produced to the Court in camera) to determine whether the prosecutors indeed put before the grand jury erroneous legal instructions and legal arguments concerning the applicability of the Military Extraterritorial Jurisdiction Act. 1

2 Case 1:08-cr RMU Document 147 Filed 10/16/2009 Page 2 of 3 After conference between the parties, the Government has declined to consent to the relief sought herein. Defendants respectfully request oral argument on the motion. A proposed Order is attached. Respectfully submitted, By: /s/ Mark J. Hulkower Mark J. Hulkower (No ) Thomas G. Connolly (No ) Brian M. Heberlig (No ) Steven A. Fredley (No ) Bruce C. Bishop (No ) Wiltshire & Grannis LLP Michael J. Baratz (No ) 1200 Eighteenth Street N.W. Suite 1200 Steptoe & Johnson LLP Washington, D.C Connecticut Ave. N.W. (202) Washington, D.C Counsel for Defendant Nicholas A. Slatten (202) Counsel for Defendant Paul A. Slough William Coffield (No ) David Schertler (No ) Coffield Law Group LLP Danny Onorato (No ) 1330 Connecticut Ave. N.W. Suite 220 Veronica R. Jennings (No ) Washington, D.C Schertler & Onorato, LLP (202) Pennsylvania Avenue N.W. Counsel for Defendant Evan S. Liberty North Building 9th Floor Washington, D.C (202) Counsel for Defendant Dustin L. Heard Steven J. McCool (No ) Mallon & McCool, LLC 1776 K Street, N.W. Suite 200 Washington, D.C Counsel for Defendant Donald W. Ball Dated: October 16,

3 Case 1:08-cr RMU Document 147 Filed 10/16/2009 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 16th day of October 2009, I caused the foregoing Defendants Motion to Dismiss the Indictment Due to Misinstruction of the Grand Jury Regarding the Military Extraterritorial Jurisdiction Act, Memorandum of Points and Authorities in Support, accompanying Exhibits, and Proposed Order to be filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Kenneth C. Kohl Jonathan M. Malis Barry Jonas United States Attorney s Office for the District of Columbia 555 Fourth Street, NW Washington, DC ken.kohl@usdoj.gov jonathan.m.malis@usdoj.gov Barry.Jonas@usdoj.gov Joseph N. Kaster Michael J. Dittoe Stephen Ponticiello Trial Attorney, National Security Division U.S. Department of Justice 10th and Constitution Avenue, NW Washington, DC Joseph.Kaster@usdoj.gov Michael.Dittoe2@usdj.gov Stephen.Ponticiello@usdoj.gov /s/ Mark J. Hulkower Mark J. Hulkower 3

4 Case 1:08-cr RMU Document Filed 10/16/2009 Page 1 of 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES OF AMERICA ) ) v. ) No. 1:08-cr-360-RMU ) PAUL ALVIN SLOUGH, ) NICHOLAS ABRAM SLATTEN, ) EVAN SHAWN LIBERTY, ) DUSTIN LAURENT HEARD, and ) DONALD WAYNE BALL, ) Defendants. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPPORT OF DEFENDANTS MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE GRAND JURY REGARDING THE MILITARY EXTRATERRITORIAL JURISDICTION ACT Mark J. Hulkower (No ) Thomas G. Connolly (No ) Brian M. Heberlig (No ) Steven A. Fredley (No ) Bruce C. Bishop (No ) Wiltshire & Grannis LLP Michael J. Baratz (No ) 1200 Eighteenth Street N.W. Suite 1200 Steptoe & Johnson LLP Washington, D.C Connecticut Ave. N.W. (202) Washington, D.C Counsel for Defendant Nicholas A. Slatten (202) Counsel for Defendant Paul A. Slough William Coffield (No ) David Schertler (No ) Coffield Law Group LLP Danny Onorato (No ) 1330 Connecticut Ave. N.W. Suite 220 Veronica R. Jennings (No ) Washington, D.C Schertler & Onorato, LLP (202) Pennsylvania Avenue N.W. Counsel for Defendant Evan S. Liberty North Building 9th Floor Washington, D.C (202) Counsel for Defendant Dustin L. Heard Steven J. McCool (No ) Mallon & McCool, LLC 1776 K Street, N.W., Suite 200 Washington, D.C Counsel for Defendant Donald W. Ball October 16, 2009

5 Case 1:08-cr RMU Document Filed 10/16/2009 Page 2 of 30 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION...1 PROCEDURAL BACKGROUND...2 SUMARY OF ARGUMENT...4 ARGUMENT...6 I. The Court Should Dismiss the Indictment for Misinstruction on the Applicable Law...6 A. Misinstruction of the Grand Jury on a Critical Element of Law Requires Dismissal of the Indictment for a Defect in the Grand Jury Process...6 B. Ample Evidence Shows the Government Erroneously Instructed the Grand Jury Regarding the Applicability of MEJA The Defendants Are Prosecutable Under MEJA Only If and To the Extent That Their Own Employment as Federal Subcontractors Related to Supporting the Department of Defense The Government s Use of a Blackwater Report Concerning a Different Mission Under a Different Contract Cannot Support MEJA Jurisdiction for These Defendants Under Their State Department Subcontracts The Government s Argument That the Defendants Provision of Diplomatic Security Freed Up Department of Defense Resources Because the Department of Defense Otherwise Would Have Had to Provide Diplomatic Protection Is Unfounded as a Matter of Law...18 II. The Court Should Disclose to the Defense Those Portions of the Grand Jury Transcripts Reflecting Any Government Statements Concerning Whether Defendants Employment Related to Supporting the Department of Defense Or Supported Jurisdiction Under MEJA...21 CONCLUSION...24 i

6 Case 1:08-cr RMU Document Filed 10/16/2009 Page 3 of 30 TABLE OF AUTHORITIES CASES Page(s) *Bank of Nova Scotia v. United States, 487 U.S. 250 (1988)...5, 8 Berger v. United States, 295 U.S. 78 (1935)...8 Dennis v. United States, 384 U.S. 855 ( United States v. Calandra, 414 U.S. 338 (1974)...7 United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979) (Friendly, J., dissenting)...8 *United States v. D Alessio, 822 F. Supp (D.N.J. 1993)...9 United States v. Mandujano, 425 U.S. 564 (1976)...7 United States v. Mechanik, 475 U.S. 66 (1986)...8 United States v. Moten, 582 F.2d 654 (2d Cir *United States v. Naegele, 474 F. Supp. 2d 9 (D.D.C. 2007)...22, 23, 24 United States v. North, 708 F. Supp. 370 (D.D.C. 1988)...8 United States v. Oakar, 924 F. Supp. 232 (D.D.C. 1996), aff d in part and rev d in part on other grounds, 111 F.3d 146 (D.C. Cir. 1997)...22 *United States v. Peralta, 763 F. Supp. 14 (S.D.N.Y. 1991)...9 United States v. Remington, 208 F.2d 567 (2d Cir. 1953) (L. Hand, J., dissenting)...8 ii

7 Case 1:08-cr RMU Document Filed 10/16/2009 Page 4 of 30 United States v. Sells Engineering, 463 U.S. 418 (1983)...7 United States v. Serubo, 604 F.2d 807 (3d Cir. 1979)...8 United States v. Singer, 660 F.2d 1295 (8th Cir. 1981)...7 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 ( United States v. Trie, 23 F. Supp. 2d 55 (D.D.C. 1998)...22 *United States v. Twersky, No. S2 92 Cr (SWK), 1994 WL (S.D.N.Y. June 29, 1994)...7, 8, 9, 24 *United States v. Vetere, 663 F. Supp. 381 (S.D.N.Y. 1987)...9 *United States v. Williams, 504 U.S. 36 (1992) (Stevens, J., joined by Blackmun, O Connor, and Thomas, JJ., dissenting)...8 United States v. [Redacted], No. Misc , at Wood v. Georgia, 370 U.S. 375 (1962)...7 CONSTITUTIONS U.S. Const. amend. V...7 STATUTES *22 U.S.C. 4802(a)(1) (2006)...19 *Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261(a), 3267(1)(A) (2006) ( MEJA )... passim RULES *Fed.R.Crim.P. 6(e)(3)(E)(ii)... 1, 4, Fed.R.Crim.P. 12(b)...3 Fed.R.Crim.P. 26.2(c)...22 iii

8 Case 1:08-cr RMU Document Filed 10/16/2009 Page 5 of 30 MISCELLANEOUS * Blackwater s Response to Majority Staff Report on Private Military Contractors in Iraq: An Examination of Blackwater s Actions in Fallujah, October 2007 (Ex. A)...12 *Gov t Accountability Office, REBUILDING IRAQ: Actions Needed to Improve Use of Private Security Providers, at 12 (GAO , July 2005) (Ex. H) *Letter dated Dec. 7, 2007 from Deputy Secretary of Defense Gordon England to the Hon. Barack Obama, United States Senate (Ex. J) *Letter dated Dec. 14, 2007 from Deputy Secretary of Defense Gordon England to the Hon. David Price, U.S. House of Representatives (Ex. K) *U.S. House of Representatives Committee on Oversight and Government Reform, Majority Staff, Private Military Contractors in Iraq: An Examination of Blackwater s Actions in Fallujah, at 6-7 (Sept. 2007) (Ex. F)...15 *Report of the Secretary of State s Panel on Personal Protective Services in Iraq (Ex. I)...20 iv

9 Case 1:08-cr RMU Document Filed 10/16/2009 Page 6 of 30 INTRODUCTION Defendants respectfully move to dismiss the Indictment for irregularity in the grand jury proceeding specifically, the prosecutors erroneous legal instructions and argument to the grand jury regarding the applicability of the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261(a), 3267(1)(A) (2006) ( MEJA ). The Government s previous arguments in this case regarding the applicability of MEJA both at the grand jury investigative stage, and in opposition to the defense s motion to dismiss for lack of jurisdiction show that the prosecution has advanced arguments regarding the applicability of MEJA that are flatly wrong as a matter of law. The Government s steadfast adherence to these arguments shows an overwhelming likelihood that the prosecutors placed these erroneous statements of law before the grand jury in their legal instructions to the grand jurors and in their argument that MEJA applies. Defendants respectfully urge the Court to review the grand jury transcripts, which the government has produced in camera, to confirm whether the prosecutors gave the grand jury the same legally erroneous arguments and instruction regarding MEJA that the government has advanced before this Court. Because questions of law are outside the ken of the grand jury, and the prosecutors are the grand jury s only source of authority on questions of law, any such misinstruction regarding the applicability of MEJA would necessarily be prejudicial to the Defendants, and has likely resulted in the return of an indictment that is unfounded as a matter of law. If so, the Indictment must be dismissed. In addition, Rule 6(e)(3)(E)(ii) of the Federal Rules of Criminal Procedure authorizes disclosure of grand jury transcripts when a defendant shows that a ground may exist to dismiss the indictment because of matters occurring before the grand jury. Thus, the Court should order that the portions of the grand jury transcript reflecting the prosecutors arguments and instruction

10 Case 1:08-cr RMU Document Filed 10/16/2009 Page 7 of 30 regarding MEJA must be disclosed to the defense in connection with this motion. Coming after the grand jury s term has ended and an Indictment has been returned, such disclosure will not threaten any remaining interest in the secrecy of those portions of the grand jury proceedings. On the other hand, failure to disclose the prosecution s instruction and argument on MEJA or to inspect its legal sufficiency in camera would insulate the Indictment from any review for legal defect, and would allow the government to force the Defendants to stand trial on an invalid legal theory. If Defendants constitutional right to indictment by grand jury may be satisfied by obtaining an indictment from a grand jury that has been misinstructed on the governing law, that right will cease to be a meaningful protection for defendants. PROCEDURAL BACKGROUND This case involves wholly extraterritorial conduct in the nation of Iraq. Ind. 2, 5, 7, 9. The Indictment charges offenses under the Military Extraterritorial Jurisdiction Act ( MEJA ), 18 U.S.C. 3261, 3267, by alleging that the Defendants were employed by the Armed Forces outside the United States as defined in 3267(1), because their employment under contract to the Department of State allegedly related to supporting the mission of the United States Department of Defense in the Republic of Iraq. Ind. 1.a. Shortly after arraignment, Defendants moved to dismiss the Indictment for lack of jurisdiction. (Dkt. 34) Defendants argued that the undisputed evidence, which could be considered on a motion challenging jurisdiction, established jurisdiction under MEJA is lacking because Defendants contract employment supported the mission of the Department of State, not Defense (see Dkt. 34-2, at 17-23; Dkt. 56-2, at 16-18). This view has been confirmed by numerous government officials including the then-secretary of State, the then-secretary of Defense, and then- Senator, now President Obama. (See Dkt. 56-2, at ) Denying the motion to dismiss, this 2

11 Case 1:08-cr RMU Document Filed 10/16/2009 Page 8 of 30 Court stated that Defendants contentions would be considered closely at the time for a motion for judgment of acquittal, but that because the question of jurisdiction under MEJA was intertwined with the merits, it would not be decided on a pretrial motion under Rule 12(b). Feb. 17, 2009 Tr. at In opposing Defendants motion to dismiss, the Government demonstrated that its theory of why these Defendants contract work supported the Department of Defense was based on other work by Blackwater, performed years earlier on a different contract. That earlier contract was between Blackwater and the Army, to protect military supply and logistics operations. 1 It had no relation to these Defendants subcontracts to supply diplomatic security to U.S. Embassy protectees, under the State Department s WolrdWide Personal Protective Security Services contract. The Government made similar arguments to Chief Judge Hogan during the grand jury investigation in this case. 2 Defendants respectfully submit that whether their actions were covered by MEJA under 3267(1) turns on their own individual contract employment with the Department of State, and not on Blackwater s past employment on other wholly separate contracts with the military. The Government s argument that Blackwater s past contracts with the military, or Blackwater s statements to Congress about those contracts, can establish that these Defendants contract employment under State Department contract somehow support[ed] the mission of the United States Department of Defense was wholly incorrect as a matter of law. Because the Govern- 1 See Argument Sec. B.2, infra (discussing Gov. Opp. to Def. Mot. to Dismiss For Lack of Jurisdiction at 7-9 (Dkt. 51), attached hereto as Ex. D). 2 See id. (discussing Gov. Opp. to Mot. of [Redacted] to Quash Grand Jury Subpoena, at 6-7, In re Grand Jury Subpoena, USAO#2007R02013, Misc. No (TFH) (hereinafter, Gov. Opp. to Mot. to Quash ), filed in this action as Dkt. 37-6, attached hereto as Ex. B). 3

12 Case 1:08-cr RMU Document Filed 10/16/2009 Page 9 of 30 ment advanced that erroneous argument to this Court twice (once to Chief Judge Hogan at the grand jury stage and again to this Court on Defendants motion to dismiss), there is every reason to believe the Government advanced that erroneous theory to the grand jury in seeking this Indictment. If so, the Indictment is based on misstatements of law to the grand jury, and on a theory that is invalid as a matter of law. Thus, the Indictment should be dismissed. This Court should closely review the prosecutors legal instructions and arguments to the grand jury, which have been submitted for the Court s review in camera, and should dismiss the Indictment if the prosecutors have argued an incorrect legal theory to the grand jury. In addition, to permit full litigation of this motion, the Court should order those portions of the grand jury transcript disclosed to the defense under Rule 6(e)(3)(E)(ii). The government has already disclosed all of the rest of the grand jury transcripts to the defense (both as Jencks material bearing on Kastigar, and, on the government s own initiative, as discovery in lieu of a court-ordered bill of particulars). There is no reason other than gamesmanship to withhold the remaining legal argument concerning MEJA. SUMARY OF ARGUMENT Because the grand jury operates largely free of judicial supervision, the prosecutors are the grand jury s sole source of guidance on the law. Where the prosecutors misinstruct the grand jury on the applicable law, the resulting irregularity in the proceedings will require dismissal if the violation substantially influenced the grand jury s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (citation omitted). In this case, the Government s arguments regarding the applicability of MEJA both before this Court on Defendants motion to dismiss, and before then-chief Judge Hogan at the 4

13 Case 1:08-cr RMU Document Filed 10/16/2009 Page 10 of 30 grand jury investigation stage show an overwhelming likelihood that the Government advanced legally erroneous instructions and argument to the grand jury regarding the applicability of MEJA to the facts alleged in the Indictment. By its terms, MEJA applies only to the extent that Defendants employ[ment] as... subcontractor[s] of a Federal agency relate[d] to supporting the mission of the Department of Defense in Iraq. 18 U.S.C. 3267(1)(A)(ii)(II). It is undisputed that the Defendants here were employed as State Department subcontractors, to provide personal protective services for State Department civilians and guests, under the supervision of the U.S. Embassy s Regional Security Officer. The Government s principal argument for why MEJA applies to these Defendants actions under State Department contract, however, has been that Blackwater (not these Defendants) boasted of its role as a military contractor in a report to Congress that concerned an entirely different incident a 2003 attack in Fallujah under an entirely different contract, in that case a subcontract with the United States Army. Though the 2003 Fallujah incident and Blackwater s report about it had nothing whatsoever to do with either these Defendants or the facts alleged in the Indictment, the Government has advanced the Fallujah report as its principal basis for applying MEJA here. Indeed, Blackwater s report regarding Fallujah is the only piece of evidence the Government proffered in opposition to Defendants jurisdictional motion (other than some website pictures of the Defendants and a Huffington Post article) to support the notion that Defendants employment as State Department subcontractors somehow supported the Department of Defense s mission in Iraq. The Government s heavy reliance on Blackwater s Fallujah report to support its application of MEJA, especially when challenged at the grand jury investigation stage, supports the strong inference that the prosecutors instructed and argued to the grand jury that Blackwater s work as a military contractor on other missions and other contracts, that did not involve these 5

14 Case 1:08-cr RMU Document Filed 10/16/2009 Page 11 of 30 Defendants or the facts alleged in this Indictment could support prosecution of these Defendants under MEJA for the September 2007 Nisur Square incident. The Government has also advanced a second legally erroneous ground to this Court in support of MEJA jurisdiction: the idea that the Defendants provision of diplomatic security in Baghdad freed up Department of Defense resources because but for Defendants performance of that mission, U.S. military forces would have had to provide such security. This argument is also wrong as a matter of law, because the provision of diplomatic security, even in Iraq, is the exclusive responsibility of the Department of State, under the U.S. Code and the President s directive. Thus, the Department of Defense is not responsible for such security and would not provide it if asked. Indeed, the Department of Defense itself, through its number two official, has confirmed that the Defendants work providing diplomatic security to the Department of State did not support any Department of Defense mission. Again, the fact that the Government has advanced this unfounded argument to this Court strongly suggests it also made the same legally erroneous argument to the grand jury in support of its request for an indictment under MEJA. As detailed below, the Government s misstatements of law to the grand jury require dismissal of the Indictment based on a defect in the grand jury proceedings. ARGUMENT I. The Court Should Dismiss the Indictment for Misinstruction on the Applicable Law A. Misinstruction of the Grand Jury on a Critical Element of Law Requires Dismissal of the Indictment for a Defect in the Grand Jury Process The grand jury, a fixture of English common law since before the Magna Carta, is intended to be a check against unfounded prosecution a bulwark between the citizen and the prosecutorial power of the Government. Historically, this body has been regarded as a primary 6

15 Case 1:08-cr RMU Document Filed 10/16/2009 Page 12 of 30 security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused.... Wood v. Georgia, 370 U.S. 375, 390 (1962). The grand jury provide[s] a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. United States v. Mandujano, 425 U.S. 564, 571 (1976) (plurality). [T]he Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury. United States v. Calandra, 414 U.S. 338, 343 (1974) (citing U.S. Const. amend. 5). For guidance on the law, the grand jury must rely entirely on the prosecutor. See United States v. Sells Engineering, 463 U.S. 418, 430 (1983) ( The prosecutor also advises the lay jury on the applicable law. ). 3 As a legal advisor to the grand jury, the prosecutor must give the grand jury sufficient information concerning the relevant law to enable it intelligently to decide whether a crime has been committed. United States v. Twersky, No. S2 92 Cr (SWK), 1994 WL , at *4 (S.D.N.Y. June 29, 1994) (citation omitted). Although the prosecutor need not give legal instructions which approach the comprehensiveness of the trial judge s charge to the jury, id., 4 he or she must give the jury sufficient guidance to enable the jury to intelligently determine whether the actions presented to them constitute a violation of law. Id. 3 See also United States v. Singer, 660 F.2d 1295, 1303 (8th Cir. 1981) (prosecuting attorney serves as the guiding arm of the grand jury ) (citation omitted). 4 See also United States v. North, 708 F. Supp. 370, 371 (D.D.C. 1988) (stating grand juries need not be instructed on every aspect of the law, as North appears to suggest ). 7

16 Case 1:08-cr RMU Document Filed 10/16/2009 Page 13 of 30 Because the prosecutor s guidance is the only guidance the grand jury receives, it is critical that the prosecutor s statements of law be fair and accurate. See United States v. Williams, 504 U.S. 36, (1992) (Stevens, J., joined by Blackmun, O Connor, and Thomas, JJ., dissenting). 5 At the very least, the prosecutor must not misinstruct the jury, by making assertions that are legally incorrect or misleading. Where irregularities infect the grand jury process, courts will dismiss the indictment if it is established that the violation substantially influenced the grand jury s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986)). Misinstruction of the grand jury on the elements of the law, or mistaken or misleading argument to the grand jury regarding the application of that law to the facts, warrants dismissal because it can easily result in indictment for acts which do not violate the law. Courts have dismissed indictments where the prosecutor s instructions to the grand jury were legally flawed or misleading in a way that may have substantially influenced the decision to indict. See United States v. Peralta, 763 F. Supp. 14, 19, 21 (S.D.N.Y. 1991) (dismissing indictment where the prosecutor s instructions to the grand jury on constructive posses- 5 Before the grand jury the prosecutor has the dual role of pressing for an indictment and of being the grand jury adviser. In case of conflict, the latter duty must take precedence. Id. (quoting United States v. Ciambrone, 601 F.2d 616, 628 (2d Cir. 1979) (Friendly, J., dissenting), and United States v. Remington, 208 F.2d 567, (2d Cir. 1953) (L. Hand, J., dissenting)). [T]he prosecutor s duty to protect the fundamental fairness of judicial proceedings assumes special importance when he is presenting evidence to a grand jury... because there the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. Id. at 62 (quoting United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979)). The ex parte character of grand jury proceedings makes it peculiarly important for a federal prosecutor to remember that, in the familiar phrase, the interest of the United States in a criminal prosecution is not that it shall win a case, but that justice shall be done. Id. at (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 8

17 Case 1:08-cr RMU Document Filed 10/16/2009 Page 14 of 30 sion seriously misstated the applicable law, causing prejudice to defendants); United States v. Vetere, 663 F. Supp. 381, 383, (S.D.N.Y. 1987) (dismissing indictment and subsequent conviction because of prosecutor s statement to the grand jury that motive was irrelevant, when in fact motive was an essential element of the offense; prosecutor s statement constituted an impermissible prosecutorial impairment of the grand jury s role) (citation omitted); United States v. D Alessio, 822 F. Supp. 1134, 1145 (D.N.J. 1993) (dismissing counts premised on legally erroneous assumption that defendant was included within scope of gratuity prohibition, because the wording of the indictment and the Government's explanation tainted any finding by the grand jury); see also Twersky, 1994 WL , at *4-5 (ordering production of grand jury transcripts for in camera review to determine whether grand jury was misinstructed on element of the offense). Here, if the Government told the grand jury, as it has told this Court, that these Defendants are prosecutable under MEJA because of statements by Blackwater concerning entirely different contracts and entirely different events, such misinformation constitutes a serious defect in the grand jury proceedings that would support dismissal of the Indictment. Similarly, if the Government told the grand jury, as it has told this Court, that Defendants work providing diplomatic security in Baghdad supported the Department of Defense because the Department of Defense would otherwise have had to provide such protection, it made a serious misstatement of law, because diplomatic security is and always has been, by statute, the responsibility of the Department of State, not the Department of Defense. Either or both of these misstatements of law, if made to the grand jury, likely influenced the grand jury s decision to indict indeed that was their very purpose. Far from harmless, they go to the central question the grand jury was asked to decide whether there is a basis for prosecution of these Defendants under MEJA. 9

18 Case 1:08-cr RMU Document Filed 10/16/2009 Page 15 of 30 B. Ample Evidence Shows the Government Erroneously Instructed the Grand Jury Regarding the Applicability of MEJA In this case, the Government s arguments to this Court in support of MEJA jurisdiction show an overwhelming likelihood that the Government made misstatements of law and fact to the grand jury regarding the applicability of MEJA to these Defendants. If the Government made the same arguments to the grand jury that it has made to this Court, then the grand jury was seriously misled as to what facts would suffice to show that Defendants employment brought them within the reach of MEJA. 1. The Defendants Are Prosecutable Under MEJA Only If and To the Extent That Their Own Employment as Federal Subcontractors Related to Supporting the Department of Defense It is common ground that the prosecution of these Defendants for conduct in Iraq may proceed only if these Defendants and their alleged conduct fall within the terms of MEJA, 18 U.S.C. 3261, MEJA applies only to conduct engaged in while the Defendant is employed by... the Armed Forces outside the United States. 3261(a)(1). 6 The statute s definition of employed by the Armed Forces outside the United States, 3267(1), makes clear that Defendants fit within that definition only to the extent that their employment as Federal subcon- 6 Section 3261(a) provides in relevant part: Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces Outside the United States (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States (1) while employed by or accompanying the Armed Forces outside the United States.... shall be punished as provided for that offense. 10

19 Case 1:08-cr RMU Document Filed 10/16/2009 Page 16 of 30 tractors relates to supporting the mission of the Department of Defense overseas. 7 A critical question before the grand jury was thus whether these Defendants work as State Department subcontractors relate[d] to supporting the mission of the Department of Defense in Iraq. 2. The Government s Use of a Blackwater Report Concerning a Different Mission Under a Different Contract Cannot Support MEJA Jurisdiction for These Defendants Under Their State Department Subcontracts The Government has been challenged twice in this Court regarding whether the contract employment of the Defendants in this case i.e., providing diplomatic security, under subcontract to the Department of State related to supporting the mission of the DoD. At the grand jury investigative stage, two subpoenaed witnesses raised this argument in challenging the Government s authority to prosecute. Then after arraignment, the Defendants raised the issue in their motion to dismiss the Indictment for lack of jurisdiction. In both instances, the Government s principal argument for why MEJA applies was based on an October 2007 report submitted by Blackwater to the House Committee on Oversight and 7 Section 3267(1) provides in relevant part: Definitions As used in this chapter: (1) The term employed by the Armed Forces outside the United States means (A) employed as... (ii) a contractor (including a subcontractor at any tier) of... (II) any other Federal agency,... to the extent such employment relates to supporting the mission of the Department of Defense overseas

20 Case 1:08-cr RMU Document Filed 10/16/2009 Page 17 of 30 Government Reform (the Blackwater Response ). 8 Arguing to then-chief Judge Hogan that the grand jury had jurisdiction to investigate the September 16, 2007 Nisur Square incident, the Government pointed first and foremost to the Blackwater Response, stating, In a report submitted by Blackwater USA to the United States Congress just a few weeks ago, the company acknowledged that its services in Iraq provide vital support to DoD s mission in that country. 9 The Government quoted statements from the Executive Summary of the Blackwater Response, including that Blackwater, and the veterans who work for Blackwater, have taken a difficult burden off the shoulders of the American Armed Forces, that [t]he American military cannot wage war without the help of private contractors, and that the 2006 Quadrennial Defense Review included contractors... as one of the four components of the Department of Defense s Total Force. 10 The Government further selectively quoted and recharacterized the Response s conclusion, stating, The Report concluded by emphasizing that military contractors such as Blackwater s personnel in Iraq fill vital gaps in the all-volunteer force. 11 At oral argument before Chief Judge Hogan, the Government relied almost entirely on the Blackwater Response for its argument that the grand jury had jurisdiction to investigate under MEJA. The prosecutor told Chief Judge Hogan that here, Blackwater itself has acknowledged that its contracts in Iraq were in support of DOD s mission. And they ve submitted reports to Congress stating that their services provide a vital role for the armed forces in Iraq Blackwater s Response to Majority Staff Report on Private Military Contractors in Iraq: An Examination of Blackwater s Actions in Fallujah, October 2007, attached hereto as Ex. A. 9 Gov. Opp. to Mot. to Quash at 6 (Ex. B). 10 Id. at 7 (quoting Blackwater Response at 1). 11 Id. (quoting Blackwater Response at 10). 12 Tr. of Nov. 27, 2007, United States v. [Redacted], No. Misc , at 48, attached (Continued ) 12

21 Case 1:08-cr RMU Document Filed 10/16/2009 Page 18 of 30 The prosecutor told Chief Judge Hogan that in the report submitted by Blackwater to Congressman Waxman s committee... they essentially bo[a]st that Blackwater provides a vital role in supporting our armed forces in Iraq, 13 and that in the report that was submitted to Congress by Blackwater they even refer to themselves as a military contractor. 14 The Government also submitted the Blackwater Response to this Court, as Exhibit 1 to its Opposition to the Defendants Motion to Dismiss for Lack of Jurisdiction [Dkt. 51-2]. Referring to the Blackwater Response, the Government told this Court that [i]n a report submitted by Blackwater Worldwide to the United States Congress in October 2007, the month following the Nisur Square shooting, the company boasted that its services in Iraq provide vital support to DoD s mission in that country. 15 The Government reproduced, verbatim, the same block quotation and recharacterized conclusion of the Blackwater Response that it had submitted to Chief Judge Hogan at the grand jury investigative stage. 16 Other than a reference to web page photographs of the Defendants in their military uniforms and a Huffington Post article critical of the Defendants, the Government s quotation of the Blackwater Response formed the entirety of its brief section headed, Blackwater s Support for DoD s Mission in Iraq. 17 The Government s use of the Blackwater Response is misleading in the extreme. What the Government did not tell Chief Judge Hogan, and did not tell this Court, is that the Blackwater Response concerned a different mission, under a different contract, in that case with the U.S. hereto as Ex. C. 13 Id. 14 Id. at Gov. Opp. to Def. Mot. to Dismiss For Lack of Jurisdiction, at 7 (hereinafter, Gov. Opp. to Mot. to Dismiss ), attached hereto as Ex. D. 16 Id. at Id. at 7,

22 Case 1:08-cr RMU Document Filed 10/16/2009 Page 19 of 30 Army. It had nothing to do with these Defendants employment under State Department subcontract in Iraq. This case concerns the actions of five individuals on September 16, 2007 in Nisur Square in Baghdad. It is undisputed that all five Defendants were employed under subcontracts with Blackwater to fulfill Task Order 6 of the State Department s WorldWide Personal Protective Services II ( WPPS II ) Contract. The Defendants mission under that contract was to provide diplomatic security for U.S. State Department civilians and guests traveling in Baghdad, Iraq. 18 That work was performed under the supervision of the Regional Security Officer, an officer of the U.S. Embassy in Baghdad. 19 The Blackwater Response had nothing to do with these Defendants provision of diplomatic security under State Department subcontract. Instead, the Blackwater Response concerned an entirely different incident the March 31, 2004 ambush of a Blackwater-protected military supply convoy in Fallujah. 20 In the Fallujah ambush, a Blackwater security team escorted a three-truck supply convoy from a U.S. Marine base, Camp Taji, to a U.S. Army base, Camp Ridgeway. 21 Blackwater was acting under a subcontract to provide security services for companies providing logistics and supply operations to the U.S. Army, such as meals, laundry and living containers for U.S. soldiers in Iraq See Def. Motion to Dismiss for Lack of Jurisdiction, at 6-7 (hereinafter MEJA Mot. ), attached hereto as Ex. E. 19 See id. at See Blackwater Response at 2-4 (Ex. A). 21 Id. at 1-2 & n U.S. House of Representatives, Committee on Oversight and Government Reform, Majority Staff, Private Military Contractors in Iraq: An Examination of Blackwater s Actions in Fallujah, at 6-7 (Sept. 2007), attached hereto as Ex. F. 14

23 Case 1:08-cr RMU Document Filed 10/16/2009 Page 20 of 30 Every paragraph and every page of the Blackwater Response (Ex. A) concerns the 2004 Fallujah ambush. Because the Blackwater team in that incident was protecting military supply operations under a military subcontract, it is reasonable and accurate that Blackwater would describe itself in that report as a military contractor, and would speak proudly of its support for military operations in Iraq. But Blackwater s description of its role supporting the U.S. military under a military subcontract, in response to Congressional criticism of Blackwater s performance in that specific incident, has nothing whatsoever to do with these Defendants provision of diplomatic security services to the State Department under an entirely different contract. Blackwater s operations in Iraq included many contracts some military, some not. But Blackwater is not on trial here. Five individuals Paul Slough, Nicholas Slatten, Evan Liberty, Dustin Heard, and Donald Ball are the defendants being prosecuted in this case. The question before the grand jury when those individuals indictment was being weighed was whether these five individuals were employed as subcontractors... of any [non-defense] Federal agency... to the extent such employment related to supporting the mission of the Department of Defense. Whether Blackwater supports the Department of Defense on other missions and other contracts is of no relevance whatsoever to whether these Defendants actions under State Department subcontract are prosecutable under MEJA. As noted, the Blackwater Response was the centerpiece of the Government s argument for jurisdiction under MEJA, both on the motion to dismiss before this Court and at the grand jury stage before Chief Judge Hogan. Because the Government has relied on it so heavily, both here and when its grand jury investigation was challenged, it is overwhelmingly likely that the Government also argued to the grand jury, as here, that Blackwater s description of itself as a military contractor in the Blackwater Response supports the notion that the five individual De- 15

24 Case 1:08-cr RMU Document Filed 10/16/2009 Page 21 of 30 fendants employment in Iraq (though under a different contract, with the Department of State) also somehow supports the Department of Defense. Such an argument is entirely unfounded and misleading, and was likely a substantial influence on the Grand Jury s decision to indict. Indeed, the Government s use of the Blackwater Response before this Court has been misleading. Nowhere in its description of the Blackwater Response did the Government mention to this Court that the Response concerned an entirely different incident, the 2004 Fallujah ambush, and not the Nisur Square incident. See Dkt. 51 (Ex. D) at 7-9. Nor did the Government mention that Blackwater s contract in Fallujah was a military subcontract, to guard military supply operations contracts that had nothing to do with this case, which concerns a State Department contract to provide diplomatic security. Id. Instead of being forthright about those distinctions, the Government described the Blackwater Response only as having been submitted by Blackwater Worldwide to the United States Congress in October 2007, the month following the Nisur Square shooting. Id. at 7. By pointing out this timing, the Government bluntly suggested, though it was careful not to explicitly state, that the Blackwater Response was submitted regarding the Nisur Square incident a statement which if made outright would be flatly false. Similarly, the Government selectively quoted and mischaracterized the conclusion of the Blackwater Response. Blackwater s Response concerned [t]he betrayal and ambush of four Americans on March 31, 2004 in Fallujah, and was submitted as a rebuttal to the Majority Staff report regarding that Fallujah incident. 23 In its conclusion, Blackwater stated, among other things, that [m]ilitary contractors, comprised largely of military veterans re-enlisting through the private sector like the four Americans killed in Fallujah, fill vital gaps in the all-volunteer 23 Blackwater Response at 10 (Ex. A). 16

25 Case 1:08-cr RMU Document Filed 10/16/2009 Page 22 of 30 force. 24 In its briefs to Chief Judge Hogan and to this Court, however, the Government paraphrased this sentence as follows: The Report concluded by emphasizing that military contractors such as Blackwater s personnel in Iraq fill vital gaps in the all-volunteer force. 25 Thus, where the Blackwater Response accurately described the four Americans killed in Fallujah as military contractors, the Government has rewritten the sentence to suggest Blackwater stated that all of Blackwater s personnel in Iraq [the Government s words] are military contractors. Again, through artful quotation and paraphrase, the Government offered a suggestion which if made outright would be untrue. If the Government engaged in such carefully crafted and misleading wordplay before this Court, it almost certainly made similar misleading use of the Blackwater Response before the Grand Jury, where it was free from oversight. The Government s transparent message to the grand jury that all Blackwater personnel in Iraq are military contractors, and that they all support the mission of the Department of Defense is misleading and untrue. It is also far from peripheral it goes to a central matter in dispute, which determines whether the Defendants may be prosecuted under U.S. law at all. There is an overwhelming likelihood that the Government presented these misleading statements to the Grand Jury, and there is an equally overwhelming likelihood that those statements substantially influenced the Grand Jury s decision to indict. If so, the Indictment must be dismissed. 24 Id. (emphasis added). 25 Gov. Opp. to Mot. to Quash, at 7 (emphasis added) (Ex. B); Gov. Opp. to Mot. to Dismiss, at 8 (emphasis added) (Ex. D). 17

26 Case 1:08-cr RMU Document Filed 10/16/2009 Page 23 of The Government s Argument That the Defendants Provision of Diplomatic Security Freed Up Department of Defense Resources Because the Department of Defense Otherwise Would Have Had to Provide Diplomatic Protection Is Unfounded as a Matter of Law The Government also argued to this Court that Defendants provision of diplomatic security supported the Department of Defense, and that jurisdiction therefore exists under MEJA, because if Defendants had not provided such security, the Department of Defense would have had to provide it. Specifically, the Government told this Court: And: In the absence of the personal security function undertaken by Blackwater in fulfillment of Task Order 6, those responsibilities in Iraq would necessarily be undertaken by DoD personnel. Thus, the net result of Blackwater s involvement in providing such security to both DOS and, on occasion, DoD personnel is to free military personnel to fulfill DoD s primary warfighting and stabilization responsibilities. 26 Finally, the government s evidence will demonstrate that the provision of security services by DOS (specifically, by Blackwater and its contract employees) to Embassy personnel, certain military personnel, and other United States government civilian employees, relieved DoD of the responsibility for furnishing such services. This, as a consequence, enabled DoD to assign units and personnel, who would otherwise be providing such security, to warfighting responsibilities. 27 These arguments are flatly wrong as a matter of law. By law, the provision of diplomatic security such as that provided under Task Order 6 is the responsibility of the Department of State, not the Department of Defense. 22 U.S.C. 4802(a)(1) (2006). 28 This is true even in 26 Gov. Opp. to Mot. to Dismiss, at 3 (Ex. D). 27 Id. at Under 4802(a)(1), the Secretary of State has responsibility to provide for the security of United States Government operations of a diplomatic nature, including (A) protection of all United States Government personnel on official duty abroad (other than Voice of America correspondents on official assignment and those personnel under the command of a United States area military commander), and (B) establishment and operation of security functions at all United States Government missions abroad (other than facilities or installations subject to the control of a United States area military commander). The Secretary s [s]ecurity responsibili- (Continued ) 18

27 Case 1:08-cr RMU Document Filed 10/16/2009 Page 24 of 30 countries where the United States has an active military presence, such as Iraq. As the Government Accountability Office explained in a 2005 report specifically examining the role of private security contractors in Iraq: The State Department is responsible for the security of most of the executivebranch U.S. Government employees located in Iraq. According to the President s Letter of Instruction, the U.S. Ambassador, as Chief of Mission, is tasked by the President with full responsibility for the safety of all United States government personnel on official duty abroad except those under the security protection of a combatant commander or on the staff of an international organization. The embassy s Regional Security officer is the Chief of Mission s focal point for security issues and as such establishes specific security policies and procedures for all executive branch personnel who fall under the Chief of Mission s security responsibility. In June 2004, representatives from the Department of State and DOD signed two memoranda of agreement to clarify each department s security responsibilities in Iraq. Among other things the agreements specify that In general, the Chief of Mission is responsible for the physical security, equipment, and personnel protective services for U.S. Mission Iraq;... Military capabilities may be requested by the Chief of Mission to provide physical security, equipment, and protective services only when security requirements exceed available Marine Security Guard Detachment, Department of State Diplomatic Security Service, and Department of State contracted security support capabilities Contrary to the Government s representation, the Department of Defense does not and would not provide diplomatic security in Iraq, because the DoD correctly does not view diploties shall include, inter alia, Establishment and operation of post security and protective functions abroad, Establishment and operation of local guard services abroad, Supervision of the United States Marine Corps security guard program, and Protection of the Secretary of State and other persons designated by the Secretary of State, as authorized by law. 4802(a)(2)(B)(i), (iv), (v), (viii). 29 Gov t Accountability Office, REBUILDING IRAQ: Actions Needed to Improve Use of Private Security Providers, at 12 (GAO , July 2005), attached hereto as Ex. H. 19

28 Case 1:08-cr RMU Document Filed 10/16/2009 Page 25 of 30 matic security as a Defense responsibility. As the GAO has explained: U.S. civilian government agencies... have had to contract with private security contractors because it is not part of the U.S. military s stated mission to provide security to these organizations. U.S. forces in Iraq provide security to contractors and DOD civilians who support military operations. The Ambassador is charged with generally ensuring the security of most executive branch employees in Iraq. 30 Similarly, the panel of experts assembled by former Secretary of State Condoleeza Rice to review the use of security contractors in Iraq in the wake of this incident concluded as one of its principal findings that [t]he U.S. Military in Iraq does not consider it feasible or desirable under existing conditions in Iraq for the Department of Defense to take on responsibility for provision of PPS [personal protective services] support to the Embassy. 31 Finally, the Department of Defense itself has expressly stated, with respect to these Defendants and the Nisur Square incident, that these private security contractors were not engaged in employment supporting the DoD mission overseas. 32 If anyone is able to state definitively whether the Defendants provision of diplomatic security to the State Department somehow supported the Department of Defense, it is the Deputy Secretary of Defense, that department s number two official. Thus, even if the Department of Defense ever were to fulfill the diplomatic security function that these Defendants were engaged in on September 16, 2007 (a hypothetical entirely of the Government s own imagination, since the Department of State fulfilled its respon- 30 REBUILDING IRAQ, at 10 (Ex. H) (emphasis added). 31 Report of the Secretary of State s Panel on Personal Protective Services in Iraq, at 5 (Principal Finding No. 6) (Oct. 2007), attached hereto as Ex. I. 32 Letter dated Dec. 7, 2007 from Deputy Secretary of Defense Gordon England to the Hon. Barack Obama, United States Senate, at 3, attached hereto as Ex. J; accord Letter dated Dec. 14, 2007 from Deputy Secretary of Defense Gordon England to the Hon. David Price, U.S. House of Representatives, at 2 (stating the Blackwater USA private security contractors working under a Department of State contract were not engaged in employment that was in support of the DoD mission ), attached hereto as Ex. K). 20